Employers should ask about mental health issues

Howard Levitt: Employers should ask about mental health issues

Disabilities are often invisible. Widely expanded, the definition includes addiction, depression and other concomitants of workplace stress. Employers cannot immediately terminate difficult, unmanageable employees with underlying disabilities. Rather, they have obligations to accommodate them despite the cost.

Such complaints are expensive and potentially embarrassing. Tribunals’ decisions are public and, if the facts are sufficiently heinous or salacious, often publicized.

So, what does it mean to accommodate? If it’s a physical disability, you have to provide modified duties, such as telephone work, until the employee can resume their former job. If there is no alternate position the employee can perform, you still can’t dismiss them. Instead, you must permit time off until they can perform some available work (subject to indefinite absences which might lead to termination for frustration).

Related

While an obvious physical disability is simple to detect and discuss accommodation for, mental disabilities are more difficult. Employees are often uncomfortable confiding in their employer about psychiatric issues, if they are even cognizant of them. As a result, the law has evolved the little known “duty to inquire” as to an employee’s mental state if you have reason to believe they may have a disability.

This was considered recently by the B.C. Human Rights Tribunal in Mackenzie v. Jace Holdings. Sharon Mackenzie suffered from depression and had been on stress leave. She was often argumentative and had run-ins with her managers and co-workers. Ultimately, the company chose to terminate her. When she filed a human rights complaint, her employer purported shock at her claim. How, it argued, could it have discriminated against her based on a condition she had never even mentioned and of which they had no knowledge.

The tribunal found that the employer had reason to suspect Mackenzie’s depression was affecting her work. Not asking questions about her psychological state in itself constituted discrimination, the tribunal said. This irritable, insubordinate and difficult employee was awarded lost wages for six months and damages for loss of dignity because Jace Holdings failed in its “duty to inquire.”

What lessons should employers take?

Be observant Employees who may be suffering from mental health issues may invoke an obligation to make inquiries. If you notice inconsistent behaviour or an employee seeking time off for stress or anxiety, take note.

Ask questions This is especially important in circumstances where an employee has confided mental health issues to management, but even if it appears to be a reasonable possibility, be proactive. Ask employees how their work performance may be impacted by those conditions.

Ask for medical documentation Employers have a right to make inquiries. If an employee is seeking prolonged or regular time off, request medical documentation to ensure you are meeting your obligations.

Train management All of your managers and supervisors should be aware what to look for and report or take note of potential disability claims.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.